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State v. Mason11/10/2005
ad not been shown to the jury.
Teresa Covington, the court officer in charge of supervising the jury, testified that only about two or three minutes elapsed between the time the jury retired for deliberations and when she retrieved the copies of count two of Defendant's indictment. None of the jurors asked her why she was removing the copies, and Ms. Covington said she did not have any conversation with the jury members about count two.
Both parties agree that it was improper to show the jury count two of Defendant's indictment charging her with violation of the implied consent law. Any person who drives a motor vehicle in Tennessee is "deemed to have given consent to a test for the purpose of determining the alcoholic or drug content of that person's blood . . . ." Tenn. Code Ann. § 55-10-406(a)(1). If a person refuses to submit to a blood alcohol test after being informed of the consequences of failing to do so, the person may be charged with violating the implied consent law. Id. * 55-10-406(a)(3). Violation of the implied consent law, however, is not a criminal offense, and a violator must "be charged by a separate warrant or citation that does not include any charge of violating * 55- 10-401 that may arise from the same occurrence." Id.
Defendant argues, however, that the trial court exceeded the scope of inquiry permitted under Rule 606(b) of the Tennessee Rules of Evidence when it asked the individual jurors if count two had any impact on their decision as to Defendant's guilt. The State argues in its brief that the trial court's questions were necessary to satisfy the State's burden that the extraneous information was not prejudicial.
Rule 606(b) provides that:
pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon any juror's mind or emotions as influencing that juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes, except that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether the jurors agreed in advance to be bound by a quotient or gambling verdict without further discussion; nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
Tenn. R. Evid. 606(b).
Count 2 of the indictment, which was erroneously sent into the jury room during deliberations and was seen by seven members of the jury, states as follows:
COUNT 2
THE GRAND JURORS of Davidson County, Tennessee, duly impaneled and sworn, upon their oath, present that:
MALINDA L. MASON on or about the 5th day of April, 2002, in Davidson County, Tennessee and before the finding of this indictment, did refuse a test for the purpose of determining the alcoholic or drug content of Malinda L. Mason's breath at the request of Officer Richard Foley III, an Officer of the Metropolitan Police Department, the said Officer Richard Foley III having first advised Malinda L. Mason that refusal to submit to such test would be in violation of Tennessee Code Annotated § 55- 10-406 and against the peace and dignity of the State of Tennessee.
Victor S. Johnson
Victor S. Johnson III District Attorney General Twentieth Judicial District
There is no doubt that Count 2 of the indictment was extraneous, prejudicial inform
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